(concurring). I concur with the majority in this case. I write separately to emphasize the following.
A defendant’s sanity is not an element of the crimes of rape and kidnapping. The prosecution does not have the burden of proving the defendant sane beyond a reasonable doubt in its case in chief. As the majority states, a defendant’s insanity is an affirmative, burden-shifting defense. Once a defendant raises the issue and presents any evidence of insanity, the issue of defendant’s sanity then functions as an element because the prosecution is now required to prove beyond a reasonable doubt that defendant was sane at the time the charged offense occurred.
As this Court stated in People v Murphy, 416 Mich 453, 463-464; 331 NW2d 152 (1982):
A defendant in a criminal proceeding is presumed sane. Once any evidence of insanity is *469introduced, however, the prosecution bears the burden of establishing defendant’s sanity beyond a reasonable doubt. People v Krugman, 377 Mich 559, 563; 141 NW2d 33 (1966), People v Garbutt, 17 Mich 9, 23 (1868). . . . The presumption of sanity ... is merely procedural and has no weight as evidence. "[T]he prosecution are at liberty to rest upon the presumption that the accused was sane, until the presumption is overcome by defendant’s evidence,” Garbutt, p 22, meaning that the presumption vanishes and has no continued significance.Levin, J., concurred with Archer, J.